Symposium: Immigration at the Roberts Court one year after Kennedy’s retirement

John G. Malcolm is Vice President of the Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow at The Heritage Foundation.

In the year after Justice Anthony Kennedy’s retirement, immigration issues remained in a state of relative quiescence at the Supreme Court. This isn’t to say that nothing happened during the October 2018 term. It is just that it would be tough to top the high drama and significance of the travel-ban opinion — issued the second-to-last day of the October 2017 term and the day before Kennedy announced his retirement — and the upcoming DACA case. The court will consider the latter next term and issue its decision shortly before the next presidential election – a time when both immigration and the court will, no doubt, weigh heavily on voters’ minds.

In the travel-ban case, Trump v. Hawaii, Chief Justice John Roberts wrote the 5-4 majority opinion upholding President Donald Trump’s executive order suspending the admission of individuals from seven countries (most of which were majority Muslim). The majority rejected arguments that Trump had exceeded his authority under the Immigration and Nationality Act and that he had violated the establishment clause because his order was motivated by anti-Muslim bias, not national-security concerns.

In his swan song, Kennedy joined the chief’s opinion “in full.” In a short concurrence, he stressed the “necessity that officials adhere to [First Amendment] guarantees and mandates in all their actions.”

In the DACA case, Department of Homeland Security v. Regents of the University of California (and two other consolidated cases), the Supreme Court will consider whether the Trump administration’s decision to end President Barack Obama’s 2012 Deferred Action for Childhood Arrivals program — which enabled 800,000 immigrants brought to this country illegally as minors to remain and work here — is lawful or even judicially reviewable. Thus far, lower federal courts have frustrated the administration’s attempts to end DACA. In one case, employing heated language reminiscent of language used by lower courts considering the travel ban, the U.S. Court of Appeals for the 9th Circuit charged the administration with acting out of a “discriminatory motivation, including the rescission order’s disparate impact on Latinos and persons of Mexican heritage.”

While no case this term matched the significance of last term’s travel ban case or next term’s DACA case, the docket offered a few important cases affecting immigrants.

In Nielsen v. Preap, the court, by a 5-4 vote in an opinion by Justice Samuel Alito, held that a mandatory-detention statute applied to deportable aliens convicted of state crimes even though immigration authorities did not arrest them until years after they were released from state custody. 8 U.S.C. § 1226(a) allows the Department of Homeland Security to arrest and hold a deportable alien pending a removal decision. While DHS generally has discretion to release aliens pending removal, Section 1226(c)(1) lists certain categories of aliens convicted of specific crimes and directs DHS to arrest those who fall into these categories “when the alien is released” from custody and to detain them pending removal. The challengers fit within those parameters, but argued they were entitled to a bond hearing because they were not detained immediately after their release from state custody. After engaging in a lengthy grammatical analysis, the court concluded that the “when … released” language merely clarified when the duty to arrest was triggered and to exhort DHS to act promptly, not to bar detention if the arrest occurred later.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, concurred separately, contending that three separate immigration provisions limit judicial review of such cases and that it is unlikely the district court had jurisdiction to certify the classes of aliens. Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, claiming that the statute’s prohibition on bail hearings does not apply to aliens whom DHS detained years after their release from prison.

In Rehaif v. United States, the court resolved an issue of keen interest to a limited niche of immigrants. Hamid Rehaif entered the U.S. on a nonimmigrant student visa, which was terminated after he was dismissed from his university. He subsequently visited a shooting range where he rented and shot firearms. Rehaif was convicted of being an alien unlawfully in the U.S. in possession of a firearm in violation of 18 U.S.C. §922(g) and §924(a)(2). In a 7-2 opinion by Breyer, the court held that the trial judge erred when he instructed the jury that the government was not required to prove that Rehaif knew he was unlawfully in the country at the time he possessed the firearm. The court invoked its longstanding presumption that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct” and added that the statutory text further supports that presumption, as the term “knowingly” is normally read “as applying to all the subsequently listed elements of the crime.” The majority rejected the government’s appeal to the maxim “ignorance of the law is no excuse,” noting that the maxim does not normally apply where a defendant’s mistaken impression causes him to misunderstand his conduct’s significance, thereby negating an element of the crime.

In a dissent joined by Thomas, Justice Samuel Alito argued that “the majority’s interpretation of § 922(g) is not required by the statutory text, and there is no reason to suppose it represents what Congress intended.” The court’s decision, he added, “casually overturns the long-established interpretation of an important criminal statute,” and the court’s reinterpretation will make it significantly harder to convict persons falling into some of these categories and will likely open the floodgates of litigation, creating a substantial burden on lower courts.

And finally, on the last day of the term, the Supreme Court issued its opinion in Department of Commerce v. New York, a blockbuster case that did not involve immigration per se, but was followed intently by many advocacy organizations representing immigrants.

The case involved whether the Commerce Department could reinstate a citizenship question on the census, and it arrived at the Supreme Court in an unusual way. After two federal district court judges held that the department could not include the question, the solicitor general asked the court to consider the case without the benefit of appellate review, claiming that for the Commerce Department to proceed, it was necessary to resolve the issue by June 30. The court acquiesced.

The Constitution, in Article I, Section 2, Clause 3, calls for an “Enumeration” of the population every 10 years “in such Manner” as Congress “shall by Law Direct.” By statute, Congress has authorized the Commerce Department to carry out the decennial census, and the Commerce secretary (currently Wilbur Ross) is aided by the Census Bureau, an agency within the department.

Between 1820 and 2000 (except 1840), a citizenship question was included on some form of the census. Between 1820 and 1950, it was asked of every household, and between 1960 and 2000, it was asked on a sampling census form that goes to somewhere between a quarter and a sixth of households. In 2010, the question was moved to the American Community Survey, which is sent to 2.6 percent of households. Other countries, including France, the U.K., Spain, Mexico and Germany, also ask a citizenship question on their equivalent of the census, and the United Nations recommends that other countries do so.

Getting an accurate count is important because it is used to determine how many congressmembers will represent each state, and many federal programs dispense benefits to states based on their population. Getting accurate data about the number of citizens in each state is important too. Many federal programs, for instance, provide benefits only to citizens and limited categories of qualified immigrants. Another reason to get an accurate count, and the one cited by Ross, is to help the Department of Justice enforce the Voting Rights Act by providing information needed in cases involving challenges to majority-minority districts. After considering various options, Ross decided to add a citizenship question back into the census.

Even though answers to census questions are confidential and people who identify themselves as noncitizens aren’t asked whether they are here illegally, Ross’ decision was challenged by several groups claiming that including a citizenship question on the census would result in an undercount because many people wouldn’t complete the questionnaire. The main arguments advanced by the challengers were that including a citizenship question would violate the enumeration clause (because it would result in an undercount, not an accurate enumeration), that the secretary’s decision to reinstate the question rather than choosing one of the other options was arbitrary and capricious under the Administrative Procedure Act, and finally that Ross’ proffered reason for reinstating the question was pretextual, thereby precluding meaningful judicial review of the real reason or reasons for his decision.

A highly fractured Supreme Court blocked the Commerce Department from reinstating the citizenship question on the 2020 census. As with the two Obamacare decisions, Roberts, who wrote the majority opinion, proved to be the common denominator.

In the only part of the opinion joined by all the justices, the Supreme Court held that it had jurisdiction to consider the case, and in the part joined by all the justices save Alito and Gorsuch, the court held that the secretary’s decision was reviewable under the APA.

Roberts, joined by Alito, Thomas, Gorsuch and Justice Brett Kavanaugh, rejected most of the challengers’ arguments, holding that it would not violate the enumeration clause to include a citizenship question on the census and that the secretary’s decision to reinstate the citizenship question rather than choosing one of the other options was not arbitrary and capricious.

However, and here was the kicker, the chief, joined by Ginsburg, Breyer, Sotomayor and Kagan, held that the secretary’s proffered reasons for reinstating the citizenship question were “incongruent with what the record reveals about the agency’s priorities and decision making.” While the Commerce Department claimed it needed to reinstate the citizenship question to better enforce the Voting Rights Act, the record, Roberts stated, revealed “no hint that [the secretary] was considering VRA enforcement” when, a mere week into his tenure, he began taking steps to reinstate the citizenship question. “Altogether,” the court explained, “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” Accordingly, the court blocked Ross from including the citizenship question pending a remand to the Department of Commerce to give it another try, time permitting.

Thomas, joined by Gorsuch and Kavanaugh, dissented in part, arguing that the Supreme Court should have ended its inquiry after concluding that the Commerce secretary’s decision was constitutional and lawful. He argued that in doubting the secretary’s motives, the court ignored the “presumption of regularity” that courts owe agencies. In short, Thomas argued, the opinion “reflects an unprecedented departure from our deferential review of discretionary agency decisions” and “if taken seriously … would transform administrative law.”

Breyer, joined by Ginsburg, Sotomayor and Kagan, dissented in part, contending that the secretary’s decision violated the APA. Including the citizenship question, Breyer stated, “created a severe risk of harmful consequences” because it “would likely cause a disproportionate number of noncitizens and Hispanics to go uncounted in the upcoming census.” The secretary, Breyer believed, failed to consider this important aspect of the problem or articulate a satisfactory explanation for it.

Alito dissented in part, arguing that the Supreme Court had no authority to review the secretary’s decision under the APA. Whether to include a citizenship question on the census, he stated, “is committed by law to the discretion of the Secretary of Commerce and is therefore exempt from APA review.”

Although the challengers in this case got a “win,” it was not a resounding one. The Supreme Court made clear that, if adequately supported, a citizenship question may reappear on the census in the future, but it appears that the clock has run out on the administration’s efforts to return the question to the 2020 census, although the president has vowed to utilize existing federal databases to obtain that information in other ways.